The Hindsight Trap: A Cautionary Tale for Claimants?

Clyde & Co successfully defended a claim for damages relating to the assessment and consent of a haemorrhoidectomy performed on 13 June 2019. The Court found that the claimant’s evidence was particularly affected by hindsight, as her view was inevitably coloured by the unfortunate outcome of the surgery.

Overview

Following the haemorrhoidectomy, the claimant developed an anal stricture  — a rare but serious complication of this procedure.

At trial, it was alleged that the defendant was negligent in (i) grading the haemorrhoids, and (ii) obtaining informed consent for the surgery. Specifically, it was claimed that there was a failure to discuss and offer non-surgical treatment options, and to disclose the risk of anal stricture. 

The claimant argued that, but for these alleged failings, she would have opted for conservative treatment instead of surgery and thus avoided the complications she suffered.

The trial was heard between 16 June and 18 June 2025 before Ms Sarah Clarke KC (sitting as a Deputy Judge of the High Court), who handed down judgment on 31 July 2025.

Issues

Grading

On 20 April 2019, the claimant consulted the defendant, who recorded that she had “2nd and 3rd degree haemorrhoids” (i.e. prolapsing haemorrhoids).

There was no explicit reference in the records to a history of prolapse, and the claimant argued that she had only first-degree haemorrhoids (i.e. non-prolapsing).

The defendant gave evidence that, in line with his standard practice, the grading was based on previous examinations and the claimant’s symptoms as reported on 20 April 2019.

It was common ground that if the claimant had first-degree haemorrhoids, offering surgery would have been inappropriate.

Consent

The clinic letter from this appointment noted: “We had a discussion about haemorrhoid surgery and she is keen to proceed. I have listed her for a Ligasure haemorrhoidectomy on 13 June and have warned her of all the usual risks, in particular post-operative pain. I have given her an EIDO information sheet regarding this.”

There was no explicit reference in the notes to a discussion about non-surgical options or the risk of anal stricture — although these were mentioned in the information sheet and, in the case of stricture, also in the consent form.

The claimant’s case was that no alternatives were discussed and that the risk of anal stricture was not explained. The defendant maintained that, consistent with his standard practice, he would have discussed conservative options and the risk of stricture.

Causation

The claimant asserted that, as her symptoms had only lasted about four months, she would have chosen conservative treatment first. The defendant argued that her symptoms were significant and that surgery was the definitive treatment. i.e. the claimant would have elected surgery in any event. 

Hindsight

Neither side alleged dishonesty but the claimant contended that the defendant was mistaken, relying on her own clear recollection and arguing that the defendant’s account relied largely on standard practice.

However, the Court resolved all issues in the defendant’s favour, finding that:

• It is difficult for many people to reliably recall, years later, their precise symptoms and discussions with clinicians; the claimant was no exception.
• The claimant sincerely regretted undergoing the surgery, and this outcome inevitably coloured her view of events.
• Knowing the importance of these issues to her claim had affected her recollection, and she had, consciously or unconsciously, reconstructed her version of events (see Diamond at [21]–[22] and Pomphrey at [31]–[33]).

In short, the claimant was found to be honest and doing her best in difficult circumstances, but her evidence was significantly affected by hindsight given the unfortunate outcome of her surgery.

Discussion

Hindsight is a crucial factor but the Court also relied on contemporaneous documents, the defendant’s factual account, and expert evidence to resolve the conflicts between the parties. 

There were some medical records which were inconsistent with the claimant’s account and the defendant was also found to be an experienced colorectal surgeon such that he was able to speak with authority as to his standard practice. 

The defendant’s expert evidence was also key. For example, it was asserted by the expert that the grades used by the defendant are “defining words” with specific clinical meanings. The Court found that assigning a grade necessarily required taking a history and performing an examination; a grade could not have been given without asking about and observing prolapse.

Of note is that the Court preferred the defendant’s expert evidence to the claimant’s expert evidence in all respects. This was in part because the claimant’s expert evidence was “based on limited experience or expertise” and thus expert selection, as always, remains paramount. 

Conclusion

The absence of an explicit note in the contemporaneous records does not automatically mean that a particular act or discussion did not occur. Equally, a defendant cannot rely solely on standard practice or critique the claimant’s evidence as hindsight-driven.

The Court will consider contemporaneous documents, objective facts, and overall probabilities to resolve conflicting evidence between parties. It is important to be alive to all these factors.